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February 23, 2006

New batch of (old) post-Booker data

Providing a belated Valentine's Day present, the US Sentencing Commission has at this link a new batch of post-Booker sentencing data on its Booker webpage.  Interestingly, this latest post-Booker data run, dated Feb. 14, shows a slight up-tick in the number of nationwide within-guideline sentences since the last data report (up to 61.9% from 61.2%).  Though I doubt this is a statistically significant change, I must speculate that the ugly pattern of reasonableness review (discussed here and here) could be leading a few more district judges to adhere to the guidelines. 

Disappointingly, this latest data run does not provide any new additional types or break-downs of data.  As I have stressed in prior posts here and here and here, more detailed data are needed for  a complete view of the post-Booker world.  At the district court level, I am especially eager to see data on the most common grounds for departures and variances, as well as data on within- and outside-guidelines sentences for first and/or non-violent offenders.  And, despite the virtues of Booker patience, I am really craving any sort of data on appeals and reasonableness review.

February 23, 2006 at 01:25 AM | Permalink


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Old reasonable people still exist, but not many make it to the bench.

In United States v. Booker, 125 S. Ct. 738 (2005), Justice Breyer and a small majority judicially enacted what Congress explicitly rejected, “advisory guidelines”. However, “It is one thing to fill a minor gap in a statute to extrapolate from its general design details that were inadvertently omitted. It is quite another thing to create from whole cloth a complex and completely novel procedure and to thrust it upon unwilling defendants for the sole purpose of rescuing a statute from a charge of unconstitutionality. United States v. Jackson, 390 U.S. 570 (1968)
The remedial decision in Booker requires additional fact-finding by the judge injecting a "level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a [any] case." Beck v. Alabama, 447 U.S. 625, 643, 100 S. Ct. 2382 (1980). The severity of the Guidelines with the doubling of the sentence for each 6 level increase in the base offense level can and does impose the death penalty on many offenders who will not live out their sentences. The importance of finding guilt beyond a reasonable doubt is; civilizations protection from tyranny, for if the prosecutor may indict on a preponderance of the evidence and the judge may sentence based on findings made on a preponderance of the evidence, guilt determinations become an application note in the Guidelines Manual §1B1.3 relevant conduct section.
But, "[a] convicted defendant cannot be 'a little bit guilty.' It is unreasonable for a jury to say in one breath that a defendant's guilt has been proved beyond a reasonable doubt and, in the next breath, to say someone else may have done it, so we recommend mercy." Buford v. State, 403 So.2d 943, 953 (1981), cert. denied, 454 U.S. 1164, 102 S. Ct. 1039 (1981). It is likewise unreasonable for a jury to say the defendant is guilty beyond a reasonable doubt of selling 5 grams of cocaine and then for a judge to decide on a preponderance of the evidence; that he also sold 5 grams of cocaine a week for two years; and some heroin which was never charged; and the 5 grams the jury acquitted on; and he had a gun at some point and was a leader organizer of someone; and he testimony at trial must have been a lie because the jury convicted him, so he obstructed justice. The five year mandatory minimum sentence turned into a 30 year sentence, 6 times the jury’s verdict.
Would any reasonable person believe this sentence is reasonable; "debatable questions as to reasonableness are not for the courts but for the legislature . . . ." E. g., Sproles v. Binford, 286 U.S. 374, 388 (1932).

I am a paralegal who spent more than 15 year in federal prison on a first offense drug conspiracy charge, I am trying to help those who have 15 more to serve.

Posted by: Barry Ward | Feb 24, 2006 9:06:29 AM

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